York v. Boardman

40 Iowa 57 | Iowa | 1874

Cole, J.

I. The first question made is as to the sufficiency of the notice to sustain the judgment when attacked 1 oKiGiNAr ísdictioirm' foreclosure. manner. Our statute provides that the notice shall “state generally the nature of the c]ajm) 0r claims, if more than one, without the need of stating the facts constituting the cause thereof, (as, for example, on account, for a promissory note, for work, for goods sold, for assault and battery, for slander, for the recovery of j>ersonal or real property, or in some other such general way,) and if the action is for money, how much is claimed, and unless he appears thereto and defends, etc.” Rev., Sec. 2812. The notice in controversy is in strict conformity with the requirements of the statute, except that it does not state how much money is claimed. Whether, where the action is for any other purpose than “ for money” merely, it is necessary, under the statute, to state “ how much is claimed,” may well admit of doubt. For instance, if the action is to recover real or personal property, together with damages for its wrongful detention, it is not probable that a notice would be held insufficient if it failed to state how much is claimed for the wrongful detention. Further than this, our statute, Rev., Secs. 3660-N2, prescribes definitely what shall be done by the court in a civil action brought to foreclose a mortgage. “ If any thing be found due the plaintiff, the court shall render judgment therefor,and must direct the mortgaged, property, or so much thereof as is necessary, to be sold to satisfy the amount due, with interest and costs. A special execution shall issue accordingly. If the mortgaged jiroperty does not sell for sufficient to satisfy the execution, a general execution may be issued against the mortgagor, unless the parties have stipulated otherwise.” From these provisions it would seem to follow, that a notice of an action “ to foreclose a mortgage,” is a notice in full to the defendants that the court will find the amount due the plaintiff, will render judgment therefor, will direct the mortgaged property to be sold, will order a special execution to issue for its sale, and will also order a general execution to be issued for any deficiency. Surely such a notice is sufficient to give the court complete and full jurisdiction over the person and subject matter, even if it is not technically and perfectly accurate and in compliance with the directory provisions of the statute first above quoted.

But it has been well held and expressly, that if a judgment in an action to foreclose a lien is entered against the defendant 2. judgment : personal: in rem: equity, personally as well as against the property, when no personal judgment is prayed tor m the complaint, such personal judgment, though erroneous, is not void; and the entry of such judgment is not a fraud, and is not to be set aside in equity. Freem. on Judg., § 487; citing, Vaughn v. Johnson, 1 Stock., 175; and Harnson v. Nettleship, 2 Mylne & Keene, 423. The notice specifies that the mortgage sued on is that assigned by Tork to the plaintiff. The sufficiency of the notice in the foreclosure case could hardly be doubted, if it had been attacked in limine or by a direct proceeding by appeal; and a fortiori it is sufficient when attacked in this manner. De Tar v. Boone County, 34 Iowa, 488, and the. cases there cited. The judgment of foreclosure was therefore valid, and cannot be set aside upon this proceeding.

II. It is further claimed that the election by the mortgagor, Weeks, to have the property sold subject to redemption, was 3 equity: sale. procured by the fraud of Boardman and Wallace, But a careful examination of the evidence has satisfied each of us that -it fails to establish fraud, or any improper conduct in resjnect to that matter by either of said defendants. We have examined carefully for- some principle or equitable basis whereon to rest an affirmance of the order enjoining so much of the judgment as was .founded upon the five hundred dollar note, assigned without recourse, but we ■cannot. Indeed, aside from the assignment itself, the weight of the evidence show's that York sold that note to Wallace with guarantee. The mortgaged property was sold to Board-man for only about one-third to one-lialf its value, and leaves plaintiff liable to him or his assigns for the balance of the mortgage debt. This seems abstractly' inequitable. But it is a result brought by plaintiff upon himself, by his neglect to defend or redeem, and his delay' in' seeking a remedy by appeal or otherwise. The whole injunction must be dissolved, and the petition dismissed. On plaintiff’s appeal the judgment is affirmed; but on defendant’s appeal it is

Reversed.